Hiring in the “New Normal” of COVID-19 – 4 Tips for Employers
With Ontario now in Phase 2 of the COVID-19 reopening process, the prospect of greater economic activity is on the horizon. Some employers might be thinking about hiring new employees. This is certainly a happier development, after the long shutdowns and associated workforce reductions – but hiring during the “new normal” is… well… not quite normal.
Employers need to be aware of how the “new normal” can impact their hiring process. Below, we provide an overview of a few key considerations. Of course, this is all subject to the usual COVID-blog caveats: none of this is a substitute for tailored legal advice, and the economic and regulatory landscape is ever-changing. This information is Ontario-focused, and current as of July 8th, 2020.
1. Mind Your Qs – Use Non-Discriminatory Interview Questions
Avoiding discriminatory interview questions is not a “new” requirement for employers. It’s just that now, in the “new normal”, many workers are balancing a lot more obligations, and heightened risks associated with work. For example:
With fewer childcare or dependant-care options, caring for dependants can impose scheduling or work location constraints on prospective employees.
Medical conditions may require employees to take specific precautions or avoid certain exposures.
Modifications to the work environment (i.e. use of certain remote work technologies, or PPE requirements) might pose challenges to some prospective employees due to a protected ground under the Ontario Human Rights Code (the “Code”).
So what does this mean for employers? Can employers ask interview questions to make sure prospective employees can meet current workplace requirements?
Yes, but the key word here is requirements, which are distinct from preferences. Employers should know the job’s essential duties and bona fide requirements and target questions to those needs – not applicants’ personal characteristics. Here are some sample dos and don’ts based on job requirements:
Working specific hours
DO: Ask about the applicant’s availability, and ability to work the minimum number of required hours in a day/week
DON’T: Don’t ask whether the applicant has dependants at home, or whether they have childcare lined up, etc.
Wearing PPE, i.e. masks
DO: Explain any PPE policies, and indicate a willingness to discuss alternatives and accommodations.
DON’T: Don’t ask whether the applicant has any health conditions.
Working in hazardous conditions
DO: Eliminate hazards wherever possible. For unavoidable hazards (i.e. working in proximity to another worker on a production line), be up front about it, explain risk mitigation measures, and ask whether there are any impediments to the applicant performing the work that way.
DON’T: Don’t hide or downplay workplace hazards. And again, don’t ask about health conditions or other personal characteristics – focus instead on the functional requirements of the job.
2. Adjusting the Onboarding Process
Onboarding might look different in the era of COVID-19. If employees are still working from home, then most (or all) of the onboarding process might take place remotely. In these circumstances, communication is key. Employers need to scrupulously communicate their policies and expectations to new employees to avoid misunderstandings and help ward off avoidable performance issues.
Key considerations when onboarding remotely include:
Ensuring new employees understand any requirements around confidentiality and data security;
Setting clear expectations re: hours of work, breaks, and overtime – this helps employees “clock out” in their off-hours, and it helps employers avoid unexpected overtime claims;
Setting up frequent check-ins and a clear reporting structure so that new employees can integrate smoothly in the absence of in-person, chance interactions at the office; and
Educating workers about health and safety in the remote workplace.
And whether onboarding is happening remotely or in-person, be open to feedback and be ready to engage the accommodation process if the need arises.
3. Mind Your CEWS – Budget for New Employees’ Eligibility
Provided the employer and employee otherwise meet the eligibility requirements, the Canada Emergency Wage Subsidy (CEWS) is available for new employees hired after March 15, 2020. The only exception is for new hires who do not deal at arm’s length with the employer (i.e. family members, etc.).
The rules for calculating the subsidy amount for new employees are slightly different (and in some cases, slightly less generous) than for existing employees, so be mindful of that when budgeting for new hires.
4. Update Your Paperwork
This is a good time for employers to double-check their paperwork and ensure it fits with the “new normal.” Opening up won’t necessarily be a smooth or continuous process. We may be in for multiple rounds of closures, or (unfortunately) individual businesses may have to temporarily close due to outbreaks onsite. Employers need to have their ducks in a row to deal with these realities.
First, employers should check their employment agreements:
Do they include a clause permitting temporary layoffs or reduced hours? If not, consider including one for new hires. This can provide a layer of protection when implementing any future temporary workforce reductions.
Are the contractual termination provisions legally enforceable? Employers (or their lawyers) should double-check this, especially in light of recent Ontario case law. If there’s another economic downturn and termination becomes necessary, enforceable termination provisions can significantly mitigate the employer’s exposure for termination pay.
Second, it’s also a good time for employers to review their policies. Are they well-adapted to the realities of COVID-19? Some of them will need to be adjusted – e.g. health and safety; absenteeism; sick pay; etc. Reviewing policies before hiring new employees will help to keep expectations clear and reasonable from the start. My colleague, Cynthia Ingram, discussed some of the key considerations related to policies and protocols in her blog “It’s A Whole “New Normal” World - Employer Return-To-Work Considerations in the Post-COVID-19 Era (Part 4 of 4).”
Key Takeaways
Don’t assume the “new normal” will be exactly the same as the old normal. The workplace will have different requirements, and employees will have different needs;
Employers can’t screen out employees who have higher needs during the interview process, but they can ensure that the final candidate meets the minimum job requirements;
Ask the right questions to determine whether a prospective employee can fulfil the job’s requirements, but be mindful to avoid discriminating. Be careful not to project personal experiences or assumptions onto someone else’s situation;
Adjust onboarding processes and policies to reflect the new changes and anticipate questions from employees who are new to the workplace;
Remember to include new hires (if eligible) in the CEWS calculation and budget accordingly; and
Think long term. Be ready for another round of closures (we know, we know… but it’s a possibility). Ensure employment agreements and policies are tailored to give you the flexibility to respond to emerging situations.
